This
appeal by special leave arises from the order of the High Court of Kerala at Ernakulam
made on October 27,
1992 in CRP
No.1399/87. The admitted facts are that K. Moideenkutty, the declarant under
the Kerala Land Reforms Act, 1961 was found to be in possession of 3171.53
acres of excess land in Thiruvampadi village. This finding came to be recorded
by the Taluk Land Board, Kozhlkode in its order dated March 29, 1985 under the Act . That order became
final. Subsequently, the Taluk Land Board reopened the matter and by order
dated August 5, 1986 found that the 877 tenants were in
occupation of an extent of 1726.90 acres of land and that 1444.63 acres was a
private forest Consequently, K. Modieenkutty was not in excess of the land.

That
order dated August 8,
1986 came to be
challenged in the revision. The learned single Judge dismissed the revision
upholding the order of the second order passed by the Taluk Land Board. Thus,
this appeal by special leave.

We
think that the view of the High Court is wholly illegal and cannot be
sustained. From the order of the Taluk Land Board it is not clear as to what
extent of the lands was in possession of each tenant and whether it was prior
to the Act came into force or was any purchase certificate given to them etc.
All the details were kept delightfully vague by the Taluk Land Board. The High
Court had not looked at this aspect of the matter and chose to confirm the
order.

Further
1444.63 acres of said land were found to be private forest with the finding
that the settlement officer had not taken possession of the land. This finding
also is wholly illegal. It was open to the declarant K.Moideenkutty to
challenge the original order passed by the Taluk Land Board on March 29, 1985
declaring that he was in excess of the land; but he did not challenge the
order. Was it right for the Taluk Land Board to go behind that order and
declare that the declarant was not in excess of the land for the reason that
possession of the land admeasuring 1444.63 acres was not taken and so it is of
private forest. Failure to take possession of excess land is one facet and
declaration of the said land as private forest is another. Failure to take
possession of the land does not ipso facto establish that the lands are private
forest lands. It was open to the owner to challenge it but was not done.
Unfortunately, the High Court also had not gone into this aspect nor examined
that aspect from the purview of the Land Reforms Act. The orders of the High
Court and the Taluk Land Board are set aside. The matter is remitted to the
High Court to the extent of land covered by the land said to be in possession
of 877 tenants, The High Court is requested to call upon Taluk Land Board to
issue notice to all the so-called tenants and the appellant and after giving
reasonable opportunity to them determine as to who are said tenants in
possession of the land and to what extent and when they came into possession
etc. The Taluk Land Board should give opportunity to the appellant to rebut the
evidence adduced by the so-called tenants and transmit the recorded facts to
High Court. The High Court would thereafter examine the matter afresh and then
decide the question according to law.

The
appeal is accordingly allowed. No costs. Mr. K. Sukumaran, the learned senior
counsel has stated that his clients have been given purchase certificate by the
Taluk Land Board. It would be open to them to place the same before the High
Court and the High Court is requested to dispose of it according to law.